Hill v. Wall , 66 Cal. 130 ( 1884 )

Morrison, C. J.

-Plaintiff brought ejectment in the Superior Court of Santa Barbara county, for the recovery of a portion of the rancho La Patera y La Golita, particularly described in the complaint. Defendant had judgment; plaintiff moved for a new trial, which was denied, and the appeal' is from the judgment, as well as from the order of the court denying a new trial.

On the hearing of the motion for a new trial it was stipulated “ that the land sold to defendant’s grantor at the guardian’s sale was the land of the plaintiff and his brother, Thomas Hill.” This was the land in controversy. It was further agreed that the stipulation might be incorporated in plaintiff’s statement on motion for a new trial, and on appeal to the Supreme Court. By the foregoing stipulation, it was admitted that plaintiff and his brother were the owners of the land in controversy at some time anterior to the making of the stipulation, and plaintiff’s right of recovery was a consequence of such stipulation, unless defendant proved title out of the plaintiff at the time the action was brought. This he attempted to do by the introduction in evidence of certain proceedings in the probate court. These proceedings consisted of an order of the probate court of Ventura county, bearing date February 5, 1875, appointing Maria Los Angeles Burke de Hill guardian of Juan B. Hill (the plaintiff) and his infant brother Thomas M. Hill. The petition for letters of guardianship was filed in the probate court of Santa Barbara county—the place of residence of the minors, and was transferred from that county to the county of Ventura, for the reason, as the order states, that the judge of the former county was disqualified to act in the matter. Plaintiff objected to the introduction in evidence of the letters of guardianship, on the ground that the probate court had no jurisdiction to make the order, and on the further ground that it was not shown that the notice required by law had been given.

The next step in the order of defendant’s proof was a petition by said guardian for the sale of the lands of the two wards, to raise money for their support and education.

On the 14th day of June, 1875, the probate court of Ventura county, by its order, authorized the guardian of the wards to sell all the right, title and interest of her wards in and to the following real estate: “ Twenty and one-half acres of the ran-

cho La Golita, being the share of a tract of thirty-one acres alloted to said minors by a decree of the district court of Santa Barbara county, in a suit in partition, wherein the guardian herein and the mother of said minors was plaintiff, and said minors were defendants.”

The defendant then offered in evidence an order of the probate court of Ventura county, dated January 31, 1876, reciting a sale of said lands to one G. H. Lillard, confirming the sale, and ordering the execution to him of the proper legal conveyance to pass the title to the land sold. Defendant then offered in evidence a deed from said guardian to G. H. Lillard, dated the 11th day of February, 1876, conveying to him all the right, title and interest of said minor children to the land in controversy, and also a deed from said Willard to defendant for the same property, bearing date October 26, 1876.

In rebuttal, the plaintiff offered in evidence a petition and subsequent order of the probate court of Santa Barbara county, dated the 11th day of December, 1876, appointing Rabaela Hill, the grandmother of said children, their guardian. Plaintiff also offered in evidence the order of the probate court of Ventura county, fixing a time for the hearing of the petition of the guardian for the sale of said lands, and ordering that a notice of such application be given for three successive weeks next before the hearing of said application, in the Santa Barbara Index, a newspaper published in the county. Defendant objected to the evidence, and the objection was sustained. The plaintiff then offered in evidence the affidavit of the printer of the newspaper, to prove that the required notice was not published for three successive weeks next before the hearing of the application. To the introduction of this affidavit in evidence objection was made, on the ground “ that the recital in the order of the court authorizing the sale, that due publication of such notice had been given, was conclusive of the fact of publication,” and thereupon objection was sustained to all inquiry in regard to the fact of publication.

The appellant assigns numerous grounds of error, but it will be sufficient for the purposes of this appeal to notice one of them, as it is decisive of the case.

This point relates to the sufficiency of the order of sale, and that point, we think, is well taken. The order does not describe the land to be sold with sufficient certainty. The description found in the order of sale is of “twenty and one-half acres of the Eancho La Golita, being the share of a tract of thirty-one acres alloted to said minors by a decree of the district court of Santa Barbara county, in a suit in partition, wherein the guardian herein and mother of said minors was plaintiff, and said minors were defendants. ”

The order of sale must be in itself sufficient; and to make it , so, the description of the land to be sold must be sufficiently definite and certain, without reference to any extraneous matter. Section 1544, C. C. P., provides that the order of sale must describe the lands to be sold, and the record cannot be helped out by reference to a document not found in it. This question was fully considered by this court in the case of Crosby v. Dowd, 61 Cal. 557, and the reasoning in that case applies to the one now in hand.

Judgment and order reversed, and cause remanded for a new trial.

Sharpstein, J., McKinstry, J., Myrick, J., Ross, J., and Thornton, J., concurred.